If you divorce in California, you’ll have to make some choices. What will the child custody arrangement be? Who gets the house?
For many people who divorce, the most difficult choices will be about the division and distribution of the marital property.
But, how can you best prepare yourself for the division of property in a California divorce?
HOW DOES THE DIVORCE PROCESS START IN CALIFORNIA?
The first thing to know is that to obtain a divorce in California, no spouse has to prove that the other spouse is “at fault.” Either spouse may obtain a divorce for “irreconcilable differences.”
To file for divorce, state law requires one or both spouses to reside in California for a minimum of six months and in the county where the divorce papers are filed for a minimum of three months.
Usually, the legal process takes about six months, but a California divorce can take more than a year if one partner is resolutely uncooperative.
Property that has been acquired by either spouse or by both spouses in the course of a marriage is generally considered marital property, with only narrow exceptions.
Non-marital property is the personal property owned or received prior to the marriage by the spouses individually.
WHAT DOES IT MEAN TO BE A “COMMUNITY PROPERTY” STATE?
California is one of nine “community property” states, so marital properties are divided “fifty-fifty” by the court – unless the divorcing spouses reach their own mutually acceptable agreement regarding marital properties.
When a couple can negotiate their own agreement regarding marital properties, it’s always better than having the court impose its will. It also saves both divorcing partners time, money, and unnecessary aggravation.
The liquidation of marital property isn’t necessary, but California law requires each spouse to receive assets of “equal value” if the division of properties and assets is determined by the court.
It may sound simple but determining what is personal property and what is marital property can quickly become complicated, particularly if the assets and properties are extensive.
If one spouse is hiding assets, a good divorce lawyer can usually find those assets, but an investigation into hidden assets invariably increases the cost and delays the divorce process.
WHAT’S THE FIRST STEP IN THE DIVISION OF PROPERTIES AND ASSETS?
The first step in dividing marital property is the requirement that both spouses complete a declaration of disclosure listing all personal and marital property acquired while the partners have been married.
Each divorcing spouse must declare his or her income, expenses, and debts. The partner who files for the divorce must submit a financial disclosure form when divorce papers are filed or within sixty days.
The responding partner must submit a financial disclosure form with the response to the divorce petition or within sixty days of submitting the response.
It is illegal in California for either divorcing spouse to fail to disclose any property or asset. If something has value, it must be disclosed.
WHAT IF YOU FAIL TO DISCLOSE A PROPERTY OR ASSET?
Any failure to disclose entirely your income, assets, properties, or debts could make you subject to court-ordered sanctions and additional legal troubles.
Financial disclosures make the division of assets and properties easier by providing the court with a clear look at the financial circumstances of the spouses. It’s best to have your divorce attorney’s help with your financial disclosure paperwork.
If you are a business owner, your interests must be protected in a divorce. Even if you started the business during the marriage, it will not necessarily be considered marital property.
WHAT IF A COUPLE JOINTLY OWNS REAL ESTATE?
Real estate often complicates California divorces. There may be a dispute over a property’s value because real estate values constantly fluctuate.
There’s also the question of whether a real estate holding will be liquidated or if one spouse will keep the property and compensate the other spouse.
If liquidation is the agreed-upon choice for the family home or any other real estate, the divorcing partners will need to choose an agent and agree on a sale price and terms.
A dispute over real estate can substantially delay a divorce. Even with an appraisal, an equitable division of property can be an exceedingly complicated matter in a California divorce.
Real estate, a business, or even the family’s pet dog could be the focus of a property dispute.
HOW WILL YOUR DIVORCE ATTORNEY HELP?
If you are divorcing in southern California, you must be advised and represented by an experienced Oceanside divorce attorney with considerable asset and property division experience.
You need a divorce lawyer who will ensure that every property and asset is rightly appraised and accurately identified as personal or marital property – a lawyer who will fully protect your rights and interests at every stage of a divorce proceeding.
WHAT IF YOU HAVE A PRENUPTIAL AGREEMENT?
In most cases, if you have a prenuptial or postnuptial agreement, that agreement will dictate how marital properties and assets are divided and distributed. If such an agreement is challenged by either spouse during the divorce proceeding, the court will want to know:
1. Was duress or fraud involved at the time the agreement was signed?
2. Did the partners disclose their properties and assets entirely before signing?
3. Do any terms of the agreement violate California state law?
Prenuptial agreements signed in California after 2002 will be enforced by California courts provided that both partners had:
1. complete details regarding each other’s property and assets before signing
2. a full seven days to consider the final agreement
3. different lawyers, unless one spouse expressly waived that right
Some things are simply difficult to divide, like a dinnerware set or a family dog. If both partners are willing to compromise a bit, the process will be easier, faster, and less costly.
WHAT WILL YOU NEED TO DECIDE BEFORE YOU DIVORCE?
Before a divorce proceeding begins, determine what assets are important. What do you really have to have? What are you willing to walk away from?
Making these decisions in advance can streamline the division of property process and make the entire divorce somewhat less overwhelming.
Honest and open communication between divorcing spouses is the key. Hiding assets, failing to disclose income, or any other dishonesty only makes the process more difficult.
Although it’s central to the process, the division of property and assets is only one aspect of a divorce. If you divorce in southern California, you must be advised and represented by an Oceanside divorce attorney who has substantial experience in all aspects of the divorce procedure.
Divorce isn’t easy. Before it starts, make absolutely certain you have the legal guidance that you’re going to need. That is your right.